Opinion
No. 1-765 / 00-1277.
Filed April 10, 2002.
Appeal from the Iowa District Court for Hardin County, DALE E. RUIGH, Judge.
The petitioner appeals a district court judicial review ruling, which affirmed a no probable cause determination as to her employment discrimination claim. AFFIRMED.
Bruce H. Stoltze of Brick, Gentry, Bowers, Swartz, Stoltze, Schuling Levis, P.C., Des Moines, for appellant.
Thomas J. Miller, Attorney General, and Rick Autry, Assistant Attorney General, for appellee commission.
Michael Noyes of Lane Waterman, Davenport, for appellee employer.
Heard by HUITINK, P.J., and MAHAN and EISENHAUER, JJ.
Sun Eilders appeals from the district court's ruling on her petition for judicial review, which affirmed a no probable cause finding issued by the Iowa Civil Rights Commission in regard to her disability discrimination claim against her former employer, Dayco Products, Inc. We affirm.
Background Facts and Proceedings . Sun Eilders began work for Dayco Products in August 1996, but suffered a work-related injury soon thereafter. Following various health-related absences, she returned to work in August 1997. Shortly after her return Eilders was twice reminded of Dayco's attendance policy, which required employees to report absences in advance, by calling in and speaking with a shift facilitator prior to the start of their shift. Failure to comply with the policy was grounds for termination, and four other employees had been terminated in 1997 for violation of the policy.
On August 29, 1997, Eilders was involuntary committed to the Ellsworth Municipal Hospital. She was transferred to the Cherokee Mental Health Institution on September 2 and discharged on September 11, 1997. Dayco's records did not indicate whether Eilders called in to report her absence on the day she was committed, but they did reflect advance absence calls on the next two working days, September 2 and 3, citing lack of transportation. The records for the succeeding three workdays, September 4, 5, and 8, indicated no calls were received. On September 8, 1997 Ann Cox, Dayco's human resources coordinator, issued a letter informing Eilders her employment with the company had been terminated for failure to come to work or call in her absences on September 4, 5, and 8.
On February 19, 1998 Eilders filed a complaint with the Iowa Civil Rights Commission, alleging wrongful termination on the basis of physical and mental disability. Eilders alleged she had called Dayco during the course of her hospitalization and informed it of her commitment. On February 25 the Commission sent a Eilders a letter requesting all her supporting evidence, and informing her she could request a right-to-sue letter within sixty days after the complaint was filed, "provided that the Commission has not made a determination of no probable cause. . . ."
After review of the initial documentation, additional investigation was recommended. Eilders was informed she could allow further investigation, withdraw her claim, demand a right-to-sue letter, or opt for mediation or arbitration. When Dayco rejected Eilders's offer of mediation, her attorney was informed that, unless another alternative was requested, the case would be placed in line for further investigation. Eilders made no subsequent election, and the Commission investigator proceeded to conduct interviews and review evidence supplied by both parties.
Eilders claimed that between August 29 and September 2 she, her family members, and a nurse at Ellsworth contacted Dayco and informed it of her hospitalization, but offered no supporting documentation to verify the content of the calls or even that any such calls occurred. She also contended the nurses at Cherokee would not allow her to telephone Dayco on September 4, 5, or 8, but a Cherokee staff member told the investigator Eilders would have been free to use the telephone, that institute records reflected no concerns by Eilders over her ability to call her employer, and that in fact Eilders had stated she was unemployed. The only documented contacts between Dayco and Eilders or any other person on Eilders's behalf were the September 2 and 3 phone calls recorded by Dayco. In response to Eilders's allegations, Ann Cox stated Dayco was not aware of the commitment and hospitalization until after Eilders's termination.
On April 28, 1999, the investigator submitted a no probable cause recommendation and investigative summary. On May 10, 1999, the administrative law judge found no probable cause to believe any unlawful discrimination occurred. The letter informing Eilders of the no probable cause finding also notified her of the right to request reconsideration from the Commission, which could be accompanied by any additional information or evidence in support of her claim, or to appeal the decision to the district court. Eilders chose to file a petition for judicial review, upon which the district court affirmed the no probable cause finding. Eilders appeals.
Standard of Review . Review of agency action by the Iowa Civil Rights Commission is governed by Iowa Code chapter 17A. Iowa Code § 17A.19 (1999). Because a no probable cause finding is not the result of a contested case but is "other agency action," Iowa Civil Rights Comm'n v. Deere Co., 482 N.W.2d 386, 389 (Iowa 1992), we reverse the agency only upon a showing it committed errors at law or otherwise took action that was "[u]nreasonable, arbitrary or capricious or characterized by an abuse of discretion or a clearly unwarranted exercise of discretion." Iowa Code § 17A.19(8).
Due Process . Eilders contends she was not provided due process in this matter as she was denied adequate notice and an opportunity to be heard. See Aluminum Co. of Am. v. Musal, 622 N.W.2d 476, 479 (Iowa 2001) (finding due process requires both notice and an opportunity to defend). Specifically, Eilders argues she was entitled to notice the investigator had concluded his inquiry and made his recommendation to the administrative law judge. She further claims she was denied a meaningful opportunity to be heard because she was not allowed to review Dayco's evidence and submit an informed response prior to any probable cause determination.
Although Eilders also complains she was never notified a no probable cause finding would bar a state court civil suit, we find she has waived error on this issue. Even if we assume the matter was sufficiently raised before the district court by Eilders's assertion she should have been notified "the decision was going to be a decision on the merits rather than a probable cause decision," the question of this notice and/or its sufficiency was not resolved in the district court's ruling. By not addressing this omission in a motion pursuant to Iowa Rule of Civil Procedure 1.904(2), Eilders has failed to preserve error on her claim. Donald Newby Farms, Inc. v. Stoll, 543 N.W.2d 289, 292 (Iowa Ct.App. 1995).
These arguments presuppose a property right in the procedural mechanics of Iowa Code chapter 216, which governs Commission action, and a resulting entitlement to due process protections during all phases of Commission proceedings. However, in the case of Citizens' Aide/Ombudsman v. Rolfes, 454 N.W.2d 815, 817-18 (Iowa 1990), our supreme court held investigation, fact-gathering and referral or recommendation actions by agencies are not subject to the same type of procedural protections as adjudications of legal rights or privileges. Such nonadjudicatory or "other agency action" is governed by only those procedural requirements contained within the agency's enabling legislation, and the "general constitutional and statutory requirements that agencies act `reasonably.'" Id. at 818 (citation omitted). Under such a standard the Commission would not be required to offer the notice or opportunity for rebuttal requested by Eilders.
Eilders's attempts to avoid the holding in Rolfes by equating a probable cause determination with a "binding adjudication" subject to due process procedural safeguards. See, e.g., Alfredo v. Iowa Racing and Gaming Comm'n, 555 N.W.2d 827, 833 (Iowa 1996) (finding due process must be satisfied in a contested case hearing). Contrary to Eilders's assertions, however, a probable cause determination neither adjudicates legal rights nor forecloses alternate legal remedies. Estabrook v. Iowa Civil Rights Comm'n, 283 N.W.2d 306, 310-11 (Iowa 1979). If due process rights would not attach at the point of the probable cause determination, they would not attach at any time prior thereto.
We recognize the law has changed since the Estabrook decision, in that a no probable cause finding now precludes a state civil suit. We do not find this change to affect the applicability of the Estabrook rationale, however, as claimants are still given the opportunity to pursue a state-law claim by demanding a right-to-sue letter prior to a probable cause determination.
Even if we were to find Eilders had a protected interest in the Commission's prehearing procedures and was entitled to due process protections, the procedures used by the agency satisfy the balancing test of Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 903, 47 L.Ed.2d 18, 33 (1976). In assessing agency action under Mathews, we are required to consider: "(1) the private interest affected, (2) the State's interest, and (3) the risk of erroneous deprivation of the individual's interest under the process already provided and the value, if any, of additional or different safeguards." In re Detention of Williams, 628 N.W.2d 447, 458 (Iowa 2001) (citations omitted).
As to the issue of notice, Eilders asserts she was precluded from pursuing a state-law claim. Presumably, Eilders contends she was entitled to know when the matter had been submitted to the administrative law judge so that she could request a right-to-sue letter prior to the probable cause determination. Admittedly, the burden created by requiring an additional notice from the agency is small. It is more than counterbalanced, however, by the fact Eilders knew her case had been placed in line for further investigation, was informed of her entitlement to request a right-to-sue letter, and was further informed the letter could be obtained only until such time as a probable cause determination had been made. It is difficult to categorize the Commission's no probable cause finding as an abrupt and unfair extinguishment of Eilders's state-law claim when she had approximately one year in which to seek a right-to-sue letter, but failed to do so.
It is not entirely clear what private interest Eilders alleges to be affected, and she at least alludes to a protected interest in a right not to be discriminated against on the basis of disability. To the extent her argument is premised on such interest, it is without merit. See Estabrook, 283 N.W.2d at 310 (assuming claimant had a property interest in a right to be free from discrimination, he was not deprived of the right by Commission procedures, as the interest was not adjudicated by the probable cause determination).
In asserting a right to confront Dayco's evidence, Eilders again attempts to import a protection present at adjudicatory stages to a preadjudicatory action. Her basic right to present evidence in support of her claim was clearly met by the administrative procedures available both before and after the no probable cause finding. We are not persuaded an inability to view the investigative file precluded Eilders from presenting "relevant" evidence at these times. Any and all evidence in support of her claim was relevant to the probable cause determination, with or without reference to the information supplied by Dayco. Finally, requiring the agency to turn over a full copy of the file, or even the summary recommendation, would place a significant burden on an already overburdened process. It would also run contrary to the legislature's intent "to permit the commission to be selective in the cases singled out to process through the agency, so as to better impact unfair or discriminatory practices with highly visible and meritorious cases." Estabrook, 283 N.W.2d at 311.
We take judicial notice of the Iowa Civil Rights Commission's 1999 Annual Report. Estabrook, 283 N.W.2d at 311. The report reveals that, in addition to engaging in "public education activities, community diversity appreciation work, and other programs in line with the mission of eliminating discrimination in Iowa," the Commission's thirty-five staff members resolved nearly 2200 timely and jurisdictional complaints. Of that number less than six percent were withdrawn and less than twelve percent requested right-to-sue letters.
Following Eilders's line of reasoning would effectively turn the probable cause determination into a contested, evidentiary proceeding. This is clearly contrary to prior Iowa case law. See id. (finding claimant is not entitled to a due process evidentiary hearing on the issue of probable cause). Eilders elected to pursue her claim administratively, rather than requesting a right-to-sue letter, which would have assured her of the complete range of procedural protections applicable in state civil suits. In choosing to pursue the arguably swifter and less expensive administrative route, Eilders subjected herself to its limited procedural safeguards. See Teleconnect Co. v. Iowa State Commerce Comm'n, 366 N.W.2d 515, 521 (Iowa 1985) (charging a claimant with knowledge that its chosen course was a "limited administrative proceeding with limited appeal possibilities").
Equal Protection . Eilders maintains she was denied equal protection under the law, as guaranteed by both the United States and Iowa Constitutions. U.S. Const. amend. XIV, § 1; Iowa Const. art. I, § 6. She reasons claimants and respondents should have an equal opportunity to pursue or defend complaints at a contested hearing, and that whereas a probable cause finding would have allowed Dayco to argue its position at an evidentiary hearing, she was denied that same opportunity when her claim was adjudicated at the probable cause phase. This contention is without merit.
As previously noted, the probable cause determination is not an adjudication on the merits. Estabrook, 283 N.W.2d at 311. In addition, equal protection applies only to similarly situated groups. Williams, 628 N.W.2d at 452. Eilders merely presupposes, without supporting authority or argument, that claimant employees and respondent employers are similarly situated. Upon review we find nothing in the enabling legislation of chapter 216that signals legislative intent to create a uniform classification. See Plyler v. Doe, 457 U.S. 202, 216, 102 S.Ct. 2382, 2394, 72 L.Ed.2d 786, 798-99 (1982) ("The initial discretion to determine what is `different' and what is `the same' resides in the legislatures of the States. A legislature must have substantial latitude to establish classifications. . . .").
Even assuming Eilders and Dayco are similarly situated, we find no infringement of equal protection. Because this is not a matter involving a suspect classification or fundamental right, Eilders can establish an equal protection violation only by showing the disparate treatment was patently arbitrary and bore no rational relationship to any legitimate governmental interest. Currans v. Linn County Civil Serv. Comm'n, 540 N.W.2d 469, 472 (Iowa Ct.App. 1995). She has clearly failed to surmount this hurdle. The State has a significant interest in preserving a selective and streamlined system. Estabrook, 283 N.W.2d at 311. As due process does not require an evidentiary hearing at the probable cause stage, and as any interest of Eilders in a full adjudicatory hearing was preserved by her option to request a right-to-sue letter, the legislature could reasonably conclude a noncontested probable cause determination would best serve the goals of the Commission.
Probable Cause Finding . Eilders argues the no probable cause finding was in error, as the facts developed during the course of the investigation show a reasonable basis for her claim. Although the vast majority of evidence gathered by the investigator indicates a disability-neutral reason for Eilders's termination, her claim does draw some support from her own allegations Dayco knew of her hospitalization, and an administrative ruling from her workers' compensation proceeding. The ruling, issued after a hearing in which Dayco did not participate, but where the nurse from Ellsworth offered testimony, found Eilders had "informed the employer of the hospitalization . . . and had made the employer aware of her condition such that she would not be able to call in every day."
Eilders also forwards numerous alleged procedural errors in regard to the investigative summary and the administrative law judge's finding. However, as these issues were not presented to the district court upon the petition for judicial review, they are not preserved for appeal. Donald Newby Farms, Inc., 543 N.W.2d at 292.
The success of Eilders's argument turns upon the standard applied when making a probable cause determination. No guidance is provided by chapter 216, which requires only "a determination of probable cause or no probable cause" by an administrative law judge. Iowa Code § 216.15(3)(a). Eilders contends the preliminary nature of the determination precludes a judge presented with conflicting evidence from making any credibility assessments. She urges instead that probable cause must be found if there is any evidence before the administrative law judge which, if believed, could lead a reasonable fact finder to conclude discrimination had occurred. If Eilders is correct, the limited evidence in support of her claim would mandate a probable cause finding. If any higher standard is to be applied, the plethora of contrary evidence renders the no probable cause determination a reasonable and rational finding well within the Commission's discretion.
Eilders also contends the initial decision to conduct further investigation was a de facto conclusion as to the viability of her claim. As her proposition has no basis either in law or fact, we decline to address her arguments in this regard.
Upon review we find Eilders advocates an unreasonable and unworkable standard, under which even the most minimal evidence warrants a probable cause determination. To impose such a limitation would require the Commission to process every complaint where a claimant attests to unsubstantiated facts that, if later proven, could constitute discriminatory practices. However, "the legislature did not intend to require the commission to process every complaint which merely generated a minimal prima facie case." Estabrook, 283 N.W.2d at 310. Denying the administrative law judge the ability to assess evidence at the probable cause stage contravenes the legislature's intent to create a selective process focused on the most "visible and meritorious cases." Id. at 311. Because the overwhelming majority of evidence before the Commission indicated Dayco did not in fact know Eilders had been involuntarily committed, and no affirmative proof was offered as to any illegal basis for her termination, we conclude the no probable cause finding was not arbitrary, capricious, or otherwise erroneous.
AFFIRMED.